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TRUMPING THE CARD

It’s 11 in the morning, and it’s business as usual in Delhi’s commercial hub, Connaught Place. But the security guard standing outside the glass door of an office in a high-rise building is leisurely drinking tea. There are hardly any visitors coming in.

The Unique Identification Authority of India (UIDAI) office, once a hub of activity, bears a deserted look. Yet, even some months ago, corporate bigwigs from India and abroad would land up there to meet its then boss, Nandan Nilekani. Everybody wanted their Aadhaar cards, which had been launched at a cost of Rs 3,300 crore in 2009.

On March 24, the Supreme Court (SC) of India said in an interim order that people without Aadhaar cards should not be deprived of government benefits. The order came in response to a public interest litigation (PIL) filed by former Justice K.S. Puttaswamy and retired major general S.G. Vombatkere, challenging the constitutional validity of Aadhaar.

On the same day, the SC stayed the order of the Goa bench of the Bombay High Court asking the UIDAI to share fingerprint details of a rape accused with the CBI. “The UIDAI stated that this would open up the floodgates for all kinds of requests for resident data,” Nilekani wrote in his blog on March 24.

“When it (Aadhaar) was launched, the government said the scheme would help transfer the benefits of various government subsidy programmes directly to the people. After the SC interim order, it clearly means that you do not have to have an Aadhaar card to get the benefits,” says Colonel (retd) Mathew Thomas, who too had filed a petition in the SC questioning the Aadhaar, under which every citizen is given a specific identification number.

Shyam Divan, the counsel for Vombatkere, told the court that there was no statute to back the project and even if there was one, it would violate the fundamental rights under Articles 14 (right to equality) and 21 (right to life and liberty) of the Constitution as the project enables surveillance of individuals and impinges upon the right to human dignity.

So far, UIDAI has been functioning under an executive order issued by the government in January 2009, as an attached office of the Planning Commission. Even before the National Identification Authority of India Bill (the proposed legislature for UIDAI) was passed, UIDAI was issuing Aadhaar cards.

Aadhaar-enabled service delivery initiatives have been linked to various government schemes such as payment of wages, social security benefits including old age payments and distribution of LPG cylinders. Maharashtra and Delhi made Aadhaar compulsory for opening of bank accounts, rent agreements and marriage certificates.

Many have said that the scheme violates human rights because citizens have to submit their biometric details (such as fingerprints and an iris scan) to get their unique numbers. These details of the 59.4 crore people who have received their Aadhaar cards have already been recorded by the UIDAI.

The card has been courting controversy from the beginning. Four major PILs have been filed in the SC. Two question the constitutional validity of Aadhaar. The third, filed by social activist Aruna Roy, makes a plea against making Aadhaar mandatory for benefits such as pensions and scholarships. The fourth holds that Aadhaar lacks statutory backing. The apex court is also hearing a batch of pleas against decisions of some states to make Aadhaar numbers compulsory for a range of activities including payment of salary, provident fund, marriage and property registration.

In September, the Supreme Court said Aadhaar was not mandatory for citizens to get benefits of government schemes. It also asked the government not to issue the card to illegal migrants. In November, it issued notices to 11 states on a PIL questioning the legal validity of the Aadhaar card as well as the authority to link it with certain services and benefits. On March 24, the court directed the government to withdraw all orders that made Aadhaar mandatory for any service.

“The UIDAI always said it was a voluntary scheme. It is the state government which made it mandatory, not us,” stresses Zoheb Hossain, the assisting lawyer of solicitor-general Mohan Parasaran.

The government, the UIDAI argues, launched Aadhaar to eradicate fraud, black-marketeering and pilferage in its beneficiary schemes. “Aadhaar is the only foolproof mechanism to check misuse of subsidies,” attorney-general G.E. Vahanvati and Parasaran, representing UIDAI, told the court in their submission.

UIDAI’s opponents, however, believe that the scheme is flawed. They have questioned the agencies put in charge of enrolling people, the involvement of dubious companies and the ever-increasing cost of the project.

Cases of fake enrolment have been rampant under Aadhaar. In 2013, newspaper reports revealed that in Bangalore, Aadhaar cards have been issued in the name of a chair, dog and tree. A recent sting operation by an investigative portal said people who posed as refugees from Nepal, Bangladesh and Pakistan were permitted to sign up for the scheme.

“If a person had a fake ID all these years with his photo and address on it, his Aadhaar ID is also fake because it is based on a fake card,” says Rajeev Chandrashekhar, a Rajya Sabha MP critical of the system. “Aadhaar doesn’t have a mechanism to distinguish between a citizen and a non-citizen. So taxpayer-funded subsidies and cash transfers can go to illegal immigrants,” Hossain says.

A senior advocate associated with the case stresses that through UIDAI, the government can keep tabs on people’s whereabouts. “If bank accounts are UID-enabled using biometrics, then wherever we withdraw money from is recorded. What right does the government have to know about my whereabouts? Is it a police state,” he asks.

According to the Supreme Court, UIDAI cannot impart data with anyone without the consent of the individual. “We have always stated that the data collected from residents would remain private, and not be shared with other agencies,” Nilekani writes in his blog.

Clearly, the controversy over the UID will continue to rage over the next few months. The matter is expected to come up for a final hearing either in April or in July, after the summer break.

“We want the court to strike down the UIDAI scheme,” a lawyer fighting UIDAI says. “The scheme can be saved if the court gives us certain guidelines on how to function,” Hossain holds.